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Farrell v. United Financial Casualty Co.

United States District Court, M.D. Pennsylvania

October 25, 2017

DAVID FARRELL, Plaintiff
v.
UNITED FINANCIAL CASUALTY COMPANY d/b/a/ PROGRESSIVE INSURANCE, Defendant

          MEMORANDUM

          RICHARD P. CONABOY DISTRICT JUDGE.

         1. Background

         We consider here the motion (Doc.10) of Defendant United Financial Casualty Company for summary judgment in the above-captioned case. The parties have briefed their respective positions (Doc. 12 and 14) and this motion is now ripe.

         This case is an action for bad faith pursuant to an insurance contract between Defendant and Plaintiff David Farrell. Plaintiff was involved in an auto accident with a third party tortfeasor, received the policy limits under the tortfeasor's policy of insurance, and submitted a claim for $35, 000 in underinsured damages from Defendant. Defendant initially declined to remit that sum but, after further exchanges between the parties, ultimately tendered $35, 000 (the policy limits).

         The parties have agreed that the following facts are not in dispute:[1]

1. Plaintiff David Farrell was involved in a motor vehicle accident with another driver on or about December 23, 2012;
2. Plaintiff was insured at that time under an automobile insurance policy issued by Defendant;
3. The policy provided up to $35, 000 in under-insured motorist coverage per person;
4. The policy states, in pertinent part, that "If you pay the premium for this coverage, we will pay for damages that an insured person is legally entitled to recover from the owner or operator of an underinsured motor vehicle because of bodily injury: (1) sustained by an insured person; (2) caused by an accident; and (3) arising out of ownership, maintenance, or use of an underinsured motor vehicle;
5. The policy defines "underinsured motor vehicle" as "a land motor vehicles or trailer of any type to which a bodily injury liability bond or policy applies at the time of the accident, but the sum of all applicable limits of liability for bodily injury is less than the damage than an insured person is entitled to recover from the owner or operator of the motor vehicle because of bodily injury";
6. Plaintiff worked as a delivery driver and was within the scope of his employment at the time of the accident;
7. Plaintiff received workers' compensation payments from the State Workers' Insurance fund ("SWIF") as a result of the accident;
8. Plaintiff retained Atty. Scott Schermerhorn to represent him with regard to the accident;
9. Plaintiff's counsel first requested that Defendant open a DIM claim on April 12, 2016; 10. Dependent opened the UIM claim on April 12, 2016; and assigned it to Margaret Mary Burke, an experienced claim professional;
11. Plaintiff's contact with Defendant regarding the UIM claim was managed exclusively by his counsel;
12. On April 26, 2016, Ms. Burke wrote to Plaintiff's counsel to request information regarding the UIM claim for ...

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